On 4 December 2018, the Supreme Court of Appeal (SCA) delivered its judgment in the appeal against the finding made by the Equality Court (and prior to that the South African Human Rights Commission) against COSATU and our International Relations Secretary, Bongani Masuku (“Masuku”).
The Equality Court had found Masuku guilty of hate speech in respect of comments made in February and March 2009 regarding Israel’s attacks on Gaza in December 2008, and against the support for Zionism and the State of Israel more broadly.
The complaint was initially made to the South African Human Rights Commission (SAHRC) by the South African Jewish Board of Deputies (SAJBD) alleging that Masuku’s comments constituted hate speech against Jewish people on the grounds of religion and ethnicity. The SAHRC referred the complaint to the Equality Court.
COSATU and Masuku appealed the Equality Court’s judgment that ruled against them and persisted in their argument before the SCA that the comments in question did not constitute hate speech but were legitimate political speech against those who supported Israel’s military occupation of Palestine.
Supreme Court of Appeal (SCA) Judgment
In its unanimous judgment, the SCA upheld the appeal and substituted the Equality Court’s order with an order dismissing the SAJBD’s complaint.
The SCA noted that the right to enjoy freedom of expression has been “fiercely promoted and jealously guarded” in our country since the advent of our Constitution and is protected in section 16(1) of the Constitution. The internal limitation to the right of freedom of expression in section 16(2) of the Constitution on the ground of hate requires that the comments be (1) based on race, ethnicity, gender or religion and (2) constitute incitement to cause harm.
In relation to Masuku’s specific comments, the SCA found that:
- Masuku’s comments had nothing to do with Jews but were “directed at supporters of the State of Israel”;
- nothing Masuku wrote or said transgressed the boundaries of legitimate free speech, “however hurtful or distasteful they may have seemed to the Jewish and wider community”; and
- Masuku’s comments were not to be deprived of constitutional protection.
The SCA’s judgment vindicates COSATU’s firmly held view that Masuku’s comments were not hate speech, but legitimate political speech. COSATU remains unwaveringly committed to its support of the Palestinian people in their fight for freedom against occupation, apartheid and for equality and dignity.
COSATU will continue to support the rights and aspirations of the Palestinian people and global justice more broadly, particularly the BDS campaign and other measures in support of global justice, democracy and anti-racism.
Finally, COSATU calls on workers of the world, progressive allies and all humanity to join and raise the voices of the poor and oppressed.
Issued by COSATU
Sizwe Pamla (Cosatu National Spokesperson)
Tel: 011 339 4911
Fax: 011 339 5080
Cell: 060 975 6794